What a New Supreme Court Decision May Mean for Plastic Surgery Malpractice Cases in Federal Court
Medical-Legal Insights in Plastic Surgery
A recent unanimous decision from the United States Supreme Court may have practical importance in medical malpractice litigation, including some plastic surgery cases.
I am commenting on this topic from the perspective of a board-certified plastic surgeon with an interest in medical-legal issues involving my specialty, not as a legal scholar.
The case, Berk v. Choy, dealt with whether a plaintiff filing a medical malpractice case in federal court must comply with a state-law requirement for an early physician affidavit, sometimes called an affidavit of merit or certificate of merit.
The plaintiff was a Florida resident who received medical care for an ankle injury while traveling in Delaware and later brought a malpractice lawsuit in federal court in Delaware.
In many states, these rules require a plaintiff to obtain an early medical expert opinion before the case is allowed to proceed. The purpose is to screen out unsupported malpractice claims before physicians and hospitals are drawn into expensive litigation.
The Supreme Court held that, in federal court, state affidavit-of-merit requirements may not apply when they conflict with the Federal Rules of Civil Procedure. In practical terms, that may allow some malpractice cases to move forward in federal court without an early supporting affidavit from a physician or other qualified medical expert.
This does not change the standard of care. It does not change what a physician must do clinically. And it does not mean that a malpractice case has merit simply because it survives the initial filing stage.
But it may change how some cases begin.
Why This May Matter
For attorneys, the decision may influence where a medical malpractice case is filed and how early expert review is used.
For physicians, including plastic surgeons, the decision is a reminder that a case may proceed further before a formal expert review is required. That means medical records, informed consent discussions, photographs, operative reports, and postoperative communications may become important very early in the litigation process.
Plastic surgery malpractice cases often turn on details, including:
- What was discussed before surgery
- Whether the patient understood the risks and alternatives
- Whether the patient was an appropriate surgical candidate
- What was documented in the operative report
- How complications were recognized, managed, and communicated
- Whether the outcome reflects a complication, a known risk, or a departure from the standard of care
These are exactly the types of issues that often require careful review by a plastic surgery expert witness.
Out-of-State Patients and Medical Travel
This decision may also be worth watching in the context of elective plastic surgery patients who travel for care.
Many plastic surgery practices see patients who live in another state. When the patient and physician are from different states, and the amount in controversy is high enough, a lawsuit may sometimes be filed in federal court. In that setting, this Supreme Court decision may affect whether an early certificate of merit is required.
The connection to medical tourism is less direct, but still interesting. Patients increasingly travel across state lines, and sometimes internationally, for cosmetic surgery. Complications may later be treated in another state or back in the United States. These cases can raise complicated questions about follow-up care, informed consent, causation, documentation, and which physicians are being asked to evaluate or treat complications after the fact.
Whether this Supreme Court ruling will have a meaningful effect on those cases remains to be seen. But for plastic surgeons, attorneys, and malpractice carriers involved in elective aesthetic surgery litigation, it is a development worth following.
The Practical Takeaway
This decision is best understood as a procedural ruling, not a change in medical negligence law.
For physicians, the core risk-management principles remain the same:
- Careful documentation
- Clear informed consent
- Appropriate patient selection
- Timely follow-up
- Good communication with patients
- Thoughtful documentation when complications occur
For attorneys, the decision may affect filing strategy and the timing of expert involvement. But the heart of a plastic surgery malpractice case remains the same: the medical facts, the records, the patient’s clinical course, and the opinions of qualified medical experts.
More to follow as this issue develops.
Donald I. Altman, M.D., M.B.A., M.L.S.
Author’s Note: This post was prompted in part by Ann W. Latner, JD’s helpful article, “SCOTUS Decision Could Result in More Malpractice Cases in Federal Court,” published April 6, 2026, in MPR / Medical Professionals Reference.
References / Further Reading
Berk v. Choy, 607 U.S. ___ (2026). United States Supreme Court decision addressing affidavit-of-merit requirements in federal medical malpractice cases. Available through Justia U.S. Supreme Court Center.
Latner, Ann W., JD. “SCOTUS Decision Could Result in More Malpractice Cases in Federal Court.” MPR / Medical Professionals Reference. Published April 6, 2026.